Massachusetts Plumber is Found to be Partially Incapacitated

In Massachusetts, workers’ compensation judges must be consistent in their decisions. If a judge decides on benefits in a way that is internally inconsistent, arbitrary or capricious, the Massachusetts Reviewing Board will overturn the decision and ask the judge to look at a case again. For example, a judge must reconcile conflicts in two medical opinions, if he adopts both.

In a recent case (George J. Carson v. National Grid USA Service Company), the reviewing board looked at an instance where the employee testified regarding his own estimate of how much he could lift and this conflicted with the doctor’s opinion. The employee was a sixty-year-old plumber who was hurt when a water heater fell and pinned him in his truck. As a result of the injury, he had to have a right knee arthroscopy and partial medial meniscectomy, plus physical therapy.

The workers’ compensation judge who heard the employee’s claim allowed supplemental evidence to be submitted because the medical issues were complex. The employee, but not the insurer, submitted supplemental medical evidence in the form of a medical opinion that said the work injury was the major cause of the employee’s disability, notwithstanding a preexisting asymptomatic knee condition.

The judge took into account the doctor’s opinion that the employee had been partially disabled since 2011 and was unable to do heavy lifting or perform deep crouches on a regular basis. The judge also adopted the doctor’s restriction that the employee couldn’t lift and carry more than forty pounds, among other things. However, the judge additionally adopted the employee’s testimony, which he found credible.

Specifically, the judge adopted the employee’s testimony of his pain waking him every 2-3 hours during the night and difficulty carrying more than 10-15 pounds. He also took note of the employee’s belief that the condition was worsening.

On the other hand, the judge rejected the opinions of the insurer’s investigators, which stated that the employee had additional job skills. The judge explained that the employee had no marketable sedentary job skills that allowed him to perform office work and also that he experienced too much pain from prolonged standing or walking. The administrative judge denied the insurer’s complaint for modification or discontinuance of the temporary total incapacity benefits that were due to its employee.

The insurer appealed the judge’s decision, claiming that the judge could not adopt both the employee’s testimony and the doctor’s statement as being inconsistent with each other. The employee argued that these were not inconsistent because his testimony was about his subjective experience of pain.

The reviewing board disagreed with the insurer. It explained that the judge had looked at testimony from the employee explaining that though he could lift the weight, it caused his knee too much pain and stress. The judge had also performed a detailed analysis of whether the employee could perform jobs for which he was qualified or whether he had a marketable skill that allowed him to perform office work for which he was otherwise not qualified. He found the employee was incapacitated.